Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

I presume that President Obama will nominate a sacrificial lamb — Eric Holder would be perfect — and force the Senate GOP to make good on its promise not to consider a SCOTUS nomination until the next presidency. I’m sure they would, and that would give the Democrats something with which to fire up their base this fall. If the depressing Hillary Clinton is the Democratic nominee, as she almost certainly will be, they will need all the juice they can get.

If I were a Republican — especially if I were Donald Trump, but any Republican will do — I would pledge to nominate a Supreme Court justice that looks like America: the America that has been ignored and disdained by legal elites. The Republican’s nominee to the High Court will be chosen to increase diversity. He or she should be an Evangelical from a region and culture not represented on the Court now. And he or she should have graduated from a top-notch law school that is not Harvard, Yale, or any of the Ivy League institutions. The GOP presidential candidate could frame this promise as a way of honoring Justice Scalia.

In a perfect world, I don’t think there should be a de facto religion test for Court members, nor should there be a geographical test, nor a law school test. But as Scalia pointed out, when the Court usurps its role in a democracy and starts making laws, this matters. Besides, this strategy would have the benefit of forcing the left to confront its own diversity rhetoric and commitments, which would likely reveal them for exactly what many of us think they are: thin veneers masking power grabs.

It is surely the case that somewhere in this vast and diverse nation, there are judges who are extremely good at what they do, despite the fact that they do not hold Ivy League law degrees. There are surely first-rate judges who are also Evangelical Protestants, a demographic group that makes up 25 percent of the US population, but zero percent of the US Supreme Court. There must be worthy SCOTUS candidates not from a coastal state; only Pinpoint, Georgia’s Clarence Thomas comes from a state in the American interior. All the other sitting justices are from New York City (3), New York state (1), New Jersey (1), and California (2). Scalia, of course, was born in New Jersey, but raised in New York City.

Come on, Republican candidates: pledge that when you are elected president, you will end the Harvard-Yale death grip on the Supreme Court. You will appoint a Supreme Court nominee from the Other America. In his Obergefell dissent, Justice Scalia said that the Court, as it now operates, and as it is now constituted, is a “threat to democracy.”

Do you agree? If you agree, honor Scalia’s prophetic wisdom and bring more balance to the Court by nominating a justice from Flyover Country.

UPDATE: OK, yes, Georgia does have some Atlantic beachfront, so technically, it’s a coastal state. And yes, John Roberts may have been born in Buffalo, but he spent most of his childhood in Indiana. Still…

128 Responses to A Populist SCOTUS Strategy

So it looks like one of the ‘white ethnics’* its going to be replaced by a post-1965 immigrant (or immigrant kid). And that at least in part his race is playing a part in his being ‘short listed’.

Take note all you who look back with rose colored glasses to how Nono and Nona came to America and ‘assimilated’ and therefore the US can’t ever have an immigration policy based on the needs of, you know, actual Americans. Already the descendents of Slavs have been voted out of office in Hamtramck, now a ‘Reagan Democrat’ is going to be replaced by a ‘New American’. Serves you Ellis-Island idolaters right.

“The court already has plenty of Christians. How about a Muslim? Or a Buddhist?”

Muslims make up, at the most, about 2% of the US population, and I suspect Buddhists make up less. In contrast nominal (at least) Christians make up 83% of the population, yet only hold 66% of the SC seats. The elephant in the room, of course, is massive Jewish overrepresentation — but of course mention that and you are just a step away to deporting the ‘elder brothers in faith’ to Auschwitz or at least Boca.

“I wouldn’t be surprised if a few of them are secretly “nones” themselves.
”

But we are repeatedly told that in this country, secularists are ruling the traditionalists with an iron foot, and we are just couple of miles away from catacombs! Why should the “nones” be hiding then?

As Supreme Court nominations are usually the last desperate argument for a poor Republican candidate: “What if there’s a vacancy on the Supreme Court in the next four years??”

It is odd the Republicans don’t have the decency to simply let the president have his pick and honestly let the process go through rather than pull a shabby stonewall strategy. God knows there have been enough disappointing Republican picks over the years…who know? Obama might pick a justice who will be a big disappointment to him!

“I agree with Donald on this — why only 9 justices? The federal circuits are all bigger than that (AFAIK) and don’t even cover the whole country. A bigger court would mean replacements would happen more often, and there would presumably be fewer decisions that hang on just one vote. The death of one member just wouldn’t loom as large, and hence wouldn’t create a political crisis.
”

I actually think that we 9 is a good size, as we want a court small enough for intimate conversation and compromise. However, Donald’s other suggestion is gold :at this point, I don’t think there is any way of saving the court other than creating term limits for justices. Beyond the obvious utility of significantly lowering the political temperature of nomination fights, the average justice is getting younger and younger, and I don’t think having people sitting at this bench 30 years after the president who appointed left the WH, is a good idea.

I mean: imagine that HRC is elected, and Kennedy, Breyer and RBG all exit stage, and Scalia’s replacement wasn’t made yet. HRC nominates 4 justices in their late 40s. This means that, actuarilly speaking, we are guaranteed 30-40 years with a rock solid liberal majority- no matter what are the politics of the electorate. Same goes if president Rubio gets to appoint those 4 justices. This sort of thing is bound to create a constitutional crisis one day.

The real sucker move would be for Obama to nominate a “moderate” Republican (say a Straight White Male Episcopalian or Unitarian), with a pro-corporate, pro-Wall Street and elite educational background. We all know from Indiana where that crowd stands on social conservatism, yet the GOP donors and their presstitutes would be slobbering on themselves and demanding that reason and moderation prevail over partisanship. It would heighten the internal contradictions within the GOP.

If Republicans flat out refuse to advance a nomination towards a vote, Dem Senators will be absolutely justified in filibustering any nominee President Trump/Cruz/Rubio presents. Until hell freezes over. Or a moderate is nominated.

The notion among the right punditry that the election should be made to turn on this vacancy will be completely erased as soon as President Clinton takes office. Everyone knows this.

who know? Obama might pick a justice who will be a big disappointment to him!

I hope he will… and I hope the justice will be a disappointment on those issues where I personally disagree with President Obama. 🙂

Muslims make up, at the most, about 2% of the US population, and I suspect Buddhists make up less. In contrast nominal (at least) Christians make up 83% of the population, yet only hold 66% of the SC seats. The elephant in the room, of course, is massive Jewish overrepresentation

Well, that and the Roman Catholic over-representation, both of which would have been anathema to the Ku Klux Klan. Not one Protestant! And to think that only a few decades ago, a sitting justice refused to shake the hand of the first Jewish justice. Ah, the good old days. Furthermore, there has yet to be even one Serbian American appointed to the court!

For the record, my family tree includes people who got off the boat in 1905, people who arrived in 1851, and people who were here before the Revolution.

The court isn’t supposed to “represent America.” Its good to break down deliberate exclusions, but even so, its not supposed to be representative. Antonin Scalia correctly pointed out that the justices are life tenured so that they can follow the law, not the popular will. (FWIW, he was responding to amicus briefs on an abortion-related case which blatantly called on the court to follow the popular will.)

Perhaps term limits would have a place — although it would require a constitutional amendment. But Supreme Court justices should NEVER run for re-election. If there are limits, they know that at the end of the term, its over, so they don’t have to pander to fads or worry about raising funds for a campaign. Maybe 20 or 25 years. That would also free presidents to appoint older justices, since they wouldn’t be so worried about perpetuating a legacy. A 35 year old would be off the court at age 60.

Part of the basis of Scalia’s judicial philosophy is that judges will never be representative of the people, and that attempts by judges to make decisions that do represent the American people will always go astray (he has in his sights here various philosophies of living constitutionalism).

Scalia was right about that. The “living constitution” renders the document so infinitely flexible as to be no constitution at all. The constitution is supposed to be a straight jacket that defines and confines the role of government. Where Scalia went wrong was to overlook that changing facts on the ground could, without changing the meaning of the constitutional language, require expounding the same language in ways not justified by previous facts. E.g., most of our commerce IS now interstate and international, very little of it is intrastate.

There are three branches of government. What describes the proper relationship between them–legislative supremacy, judicial supremacy, or co-equality of the three branches (the tripartite theory)? Republicans: EITHER legislative supremacy OR co-equality BUT NOT judicial supremacy. Democrats: De facto judicial supremacy.

No one on either side can seriously claim that executive supremacy is the answer to the question. That was the preferred option at one time. It was called “the divine right of kings.” George Washington decisively repudiated it for Americans.

Republicans have the better argument by far, even though in my view the tripartite theory doesn’t make a lot of sense (sorry, Attorney General Meese). But no matter. As long as Republicans reject judicial supremacy, this is a debate they can and should win.

This provides grounds for *consent*, in “advise and consent,” to mean substantive and not just procedural consent. Procedural consent refers to an up-or-down vote; substantive consent refers to the conditions in which the vote is to take place. Because the legislature is at least the equal of the executive, if not superior to it in the proper allocation of powers, it can decide what are the conditions or circumstances of substantive consent–of consenting to consent. The executive has no say about that. Doesn’t Obama ever wonder about what the saying, “the President proposes, Congress disposes” means? Is he radically incurious about the founding principles of our government?

Ted Cruz is not the right messenger, nor does he have the moral credibility to make the case. (Cruz reminds me of his fellow evangelical who was portrayed in a memorable Harper’s magazine article, in early 1976, titled “Jimmy Carter’s Pathetic Lies.”) Can Mike Lee make the case to the American people? Republicans need to put a young face, fused to a really good brain, on their effort to delay the nomination. Senator Lee would seem to fill the bill, although I don’t really know much about him, such as how telegenic he is.

Republicans can turn liberals’ love of substance as opposed to procedure (as in “substantive due process”) against them in perhaps the most important battle ever for the future of the judiciary.

Who says conservatives don’t like hip-hop? Now that they need to find some semblance of a principled reason to justify doing something utterly unprincipled, they’re grabbing samples from everywhere and remixing them like Kanye West.

Affirmative action is necessary… if a subgroup of conservative white people are underrepresented!

Affirmative action is justified… but not to make up for centuries of excluding certain groups – only to preserve the current situation!

Diversity is important… but especially diversity in the form of an Evangelical social conservative from middle America who went to a second-tier law school.

There should be no de facto religion test – but the existing de facto religion test should be tightened up a bit.

This is fun, it really is. I can’t wait to see what arguments will be remixed next!

Three co-equal branches of Government, each entitled to interpret the Constitution as they see fit, and to work together to resolve conflicts, not the Origenist heresies of the liberals.

The President is intended to represent the People as a unity. The Congress is intended to represent the People in their diversity. The Courts are only intended to interpret and apply the laws that Congress passes to specific disputes posed by litigants. No Congress, no law, nothing for the Court to do, so completely irrational that that which is last and least accountable to the voter should be first and supreme over other branches.

Marbury v. Madison simply established/usurped the right of the Court to interpret the Constitution. It is the first time the Supreme Court took up the matter of interpreting the Constitution.

Do people really think state family law or state abortion law or the regulation of slavery in the territories is too “dangerous” for state legislatures to regulate themselves? Especially when state family law and state abortion law proceeded without any federal oversight for centuries. What was the crisis that forced the Court to intervene?

You can defend Brown v. Board of Education, as race relations in the South were truly aberrant and out of line with race relations in the rest of the Country, not to mention lynchings and the rest of it.

But come on, the legal status of condoms in Connecticut? We need the federal government to come down and protect our rubbers from the oversight of state lawmakers?

Or the Regents case, oh my God, students publicly reciting the most milquetoast muffled monotheism that some bureaucratic committee could vomit out, and the Supreme Court had to step in to protect us from the practice of giving thanks if it invoked one of the oldest concepts and most central concepts in the history of Western civilization?

Don’t get me wrong, if the mention of equality had been barred, I might feel differently. After all, the existence of equality has never been scientifically established by anyone anywhere, and the meaning of equality has been the source of some of the bloodiest and divisive wars in history. Don’t we owe to those minorities who reject egalitarianism in order to protect them from social coercion and politically correct bullying because they are different?

I’ve heard Srinivasan‘s name kicked around. He fills a lot of our host’s criteria: grew up in Kansas, a Stanford grad, worked in the Solicitor Genera’s office under GW Bush, confirmed 97-0 in 2013 to United States Court of Appeals for the District of Columbia.

I think I could probably agree with KD on a legislative program, or serve in the same cabinet, but he offers a kind of ceremonial civic mysticism as the vehicle to get to a program of sane governance — and the mysticism repels me. And then he keeps making things up that aren’t in the constitution, but would have been if he had written the document.

The Courts are only intended to interpret and apply the laws that Congress passes to specific disputes posed by litigants.

Article III. Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made…

Cases arising under the constitution are distinct from cases arising under the laws, passed by congress. I know KD argues that the power of congress to make exceptions amounts to abolishing and dissolving all jurisdiction except what KD would like to permit… but if a power is stated, and then secondarily a power to make exceptions is authorized, there is a clear intent that powers be exercised unless some unforseen good reason makes it necessary to make minor modifications.

At any rate, original intent was clearly that the courts would rule on constitutional controversies.

Do people really think state family law or state abortion law or the regulation of slavery in the territories is too “dangerous” for state legislatures to regulate themselves?

It is not a question of whether these matters are “too dangerous” for state legislatures to regulate. It is a question of whether federal or state levels of government have the power and jurisdiction to do so. In that regard, it is wise to remember that nobody’s life, liberty, or property are safe while the legislature is in session.

By definition, no state legislature had jurisdiction to regulate slavery “in the territories.” And judicial supremacy had NOTHING to do with abolishing it in the states OR in the territories. However, KD insinuates that “popular sovereignty” in the territories was a great way to settle the slavery question… and history teaches us that it was an avoidable bloody mess. When a territory is empty, and the hot button emotional issue of the day is to be “decided by the voters in the territory,” it sparks an arms race to occupy the territory, with attendant bloody reprisals.

You can defend Brown v. Board of Education, as race relations in the South were truly aberrant and out of line with race relations in the rest of the Country, not to mention lynchings and the rest of it.

Those are not reasons for the court to rule on the matter. What WAS good cause for the court to rule is that parents and students of African descent were being denied the equal protection of the laws, which IS (after appropriate amendment) set forth in the Constitution. I note once again that Rev. Brown simply wanted his daughter to attend a school in the neighborhood where he lived, a few blocks from home, rather than having to walk a mile or more through an industrial district with several railroad tracks to catch a bus to a “colored” school several miles away.

Whether a married couple, or for that matter anyone else, uses condoms in the privacy of their home (or hotel room) is no business of the legislature of Connecticut. One of the great features of our constitution is how it restrains all levels of government from intervening in matters that are none of their business.

As the Supreme Court stated, prayer is serious business, and prayers written by The State so that school children can be compelled to recite them are either going to be offensive to some portion of the class, or are so milquetoast as to be an insult to the Lord God Almighty. Again, the state agencies were intruding on matters that are none of their business.

Barry Fernelius: [Srinivasan’s] a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. The Senate confirmed him to that position with a vote of 97-0, including ‘yes’ votes from Rubio and Cruz. I’d nominate him for the Supreme Court, ask the Republicans to explain what’s changed to make him totally unacceptable.

RD: Well, for one thing, he argued the administration’s case in Windsor.

Srinivasan argued Windsor prior to being confirmed 97-0 by the Republican-led Senate so all of those GOP Senators were well aware of his work on that case, and they still confirmed him unanimously.

Eamus Catuli: I agree with Donald on this — why only 9 justices? The federal circuits are all bigger than that (AFAIK) and don’t even cover the whole country. A bigger court would mean replacements would happen more often, and there would presumably be fewer decisions that hang on just one vote. The death of one member just wouldn’t loom as large, and hence wouldn’t create a political crisis.

Amazingly, Rick Perry has had the best idea I’ve heard for reforming the Supreme Court.

Do people really think state family law or state abortion law or the regulation of slavery in the territories is too “dangerous” for state legislatures to regulate themselves? Especially when state family law and state abortion law proceeded without any federal oversight for centuries. What was the crisis that forced the Court to intervene?

I mostly agree with Siarlys’ responses to this and your other comments, although I would go a bit further than he does. You’re right that many of these controversies were not “crises” that the federal courts absolutely had to resolve. They did so because the United States is one nation, not 50+. Now, obviously, US history is largely the history of controversy over that very point, and someone who would prefer something more like a confederation of dozens of self-governing republics is making a perfectly valid request. It’s just a request that the American public, on the whole, has chosen to deny.

How do we know? Well, first, Americans created a federal government in the first place when they didn’t have to. This was clearly an effort to overrule the sovereign states on at least some issues, notably debt forgiveness, which some populist state governments in the 1780s were doing over the objections of bondholders. At least some of the Constitution’s Framers were quite consciously hoping to see the states reduced to basically just administrative units. That was the position of that noted rap artist, Alexander Hamilton, for instance.

The Constitution, of course, was a compromise between that view and others, and it split the difference between federal and state power, including some provisions asserting “federal supremacy” but others “reserving” powers to the states. It was an unstable arrangement that led to various crises, culminating in the Civil War, which was followed by further amendments meant to clarify the relationship. These too, however, have been continual subjects of dispute.

But over time, the “nationalizing” urge has won a lot of those disputes. That’s what happened in the cases to which you refer. Americans who prefer one more or less consistent rule of law over the whole nation have persuaded the federal courts to interpret the Constitution to provide this. On some issues. Typically, they do so by asserting “rights” that citizens have, by virtue of their membership in the US polity, over against the smaller polity of the state.

Now, there’s continual pushback, and our current precariously conservative Supreme Court is one product of that. But overall, we determine what “We, the People” want America to be in roughly this way:

1. The Congress legislates something, or the federal executive takes some action, or the federal courts rule something.

2. Elections follow. If enough Americans don’t like what happened in Step 1, they elect Congresses and presidents who either undo it, or who appoint judges of a different ideological persuasion who might eventually undo it.

3. The controversial act or ruling either gets undone, or it doesn’t. The accumulation, over time, of those that don’t becomes the prevailing constitutional interpretation and, more generally, the political and legal cultures of the United States.

You (and others) are objecting to the state of the political culture today, which as I say is one that nationalizes a great many questions that could, in principle, have been left to the states. It would not necessarily have been wrong to do so, it’s just not the choice that Americans have actually made over time. But time marches on: You can continue your efforts through the political system to turn all this back, and in the future, if enough Americans agree with you, maybe the tide will turn your way.

Perry’s idea for single-terms of definite duration for Supreme Court justices is a good one. But I think it might be good to space it out a bit more. A two-term president with four nominations could easily swing the court to their own favored agenda, albeit they would not get to choose which justices their own nominees replaced.

Re: Perry’s idea for single-terms of definite duration for Supreme Court justices is a good one. But I think it might be good to space it out a bit more.

Three years would work better. Of course death and illness would still allow a single president to appoint a fair number of justices. But the cycle could be set up to avoid presidential election years.

If you want to significantly reduce the political nature of the SCOTUS, you could amend the constitution to have all federal appellate and supreme court vacancies automatically filled by lot from the federal trial court bench, and term-limited.

United States republican democracy 101… not really, since I’m not academically qualified to address the many details of its complexity. However, it can be abstracted.

I do have an area of expertise. It involved one abstract concept applied to an esoteric (and rather ubiquitously impacting) area of the law: taxes and employment compensation.

Think about that for a moment at the abstract level. Consider the social impact of two large cities separated by a line drawn on a map, telling us that they are in two different states.

One city and state has no income tax, but very high sales taxes. The other city has an income tax, but comparatively low sales taxes.

The reader can well imagine some very practical scenarios stemming from those differences.

The abstract concept is federal pre-emption. It states, simplistically, that a federal law will hold in a state. The leeway the state legislature enjoys is in either being more permissive than the federal statute (federal pre-emption being a “minimum”), or in being more prohibitive (pre-emption setting the “maximum”).

Pre-emption is the dividing line between federal control and state sovereignty.

Simplistically, ask yourself the question: is state sovereignty capable of causing harm? In the tale of those two cities, the answer is easily yes, q.e.d.

There’s an even more granular example available. The PA sales tax is 6%. Philadelphia is authorized to collect another 2%. I don’t have to travel very far to enjoy a 2% discount, and the impact that can have on Philadelphia businesses is very well documented. The state even passed a law, with reciprocity with neighboring states, requiring vehicle sales be taxed to the buyer’s place of residence, not the location of the dealer. If they hadn’t, there would be no car dealers within the boundaries of my fair city.

Federal oversight is required, or local and regional impacts of significant harm will happen.

Applying that to social issues is very difficult. I emphatically do not even imply valid analogies here. However, within that abstract concept of pre-emption is a protection without which a chaos of up to 50 sovereign nations would eventually ensue.

Our three-legged stool of government — as unstable as such a thing is in physical reality — is a poor description of the reality: it is a circle.

We the People — the collective of all individuals — delegate power to Congress, participate directly in the holder of executive power, and secondarily delegate their responsibility in appointing judges. Those judges, with SCOTUS at the very end of the pipeline, are responsible for protecting individuals from the harm caused by laws… We the People sit right there at the very end, making it a full circle, not a stool.

That is the long version of my continued assertion that eligible voters who disdain their obligation to the collective by not voting, are worthy of nothing but contempt. We the People are the vulnerable point in the circle, the “flaw” that the founders and framers consciously designed into a system which by their standards had centuries of tyranny and torture to show for monarchies.

The oligarchs who occupy the seats of power are interested in one thing, and one thing only: limiting the power of the People. That is how they gain and keep their seats of power. It is from their ranks, not from a Trump, where we will see the first American tyrant.

Right now, nothing is stopping any eligible voter from voting (caveat: states that passed voter ID laws; if that’s not proof of my assertion, nothing is). That is why Republicans fear Trump. That is why Democrats who’ve named Hillary Clinton as the next oligarch fear Sanders. That’s why they want the rest of us to fear both of them.